Akzo Nobel Coatings Inc. v. GMP Cars, LLC
- Yvonne Rogers
- 4:21-cv-03359
- U.S. District Court · Northern District of California
- 3
In Akzo Nobel v. GMP Cars, Judge Rogers denied Akzo Nobel’s request to serve GMP Cars by publication, without prejudice, because required support was missing.
Akzo Nobel Coatings Inc.’s request to serve GMP Cars, LLC by publication was denied without prejudice; the order did not decide the underlying claims against GMP Cars, LLC or Geoffrey M. Palermo.
What happened
In Akzo Nobel Coatings Inc. v. GMP Cars, LLC, Akzo Nobel asked the court for permission to notify GMP Cars LLC of the lawsuit by publishing notice in a newspaper.
The court explained that publication is allowed only when the defendant cannot reasonably be served another way and the plaintiff provides sworn facts showing a valid claim or that the defendant is a necessary or proper party. Akzo Nobel submitted its lawyer’s declaration but did not provide the required affidavit of facts. It also did not show that the proposed newspaper was most likely to give GMP Cars actual notice.
Judge Yvonne Gonzalez Rogers denied the application without prejudice and terminated the motion on the docket. The order did not decide the underlying claims.
The detailed version
- Akzo Nobel Coatings Inc. v. GMP Cars, LLC · No. 4:21-cv-03359
- Yvonne Rogers
- June 25, 2021
Background
Akzo Nobel Coatings Inc. filed an ex parte application—an application made without first obtaining a response from the opposing party—for an order authorizing service of the lawsuit on GMP Cars, LLC by publication. The application was docketed as Docket No. 12.
Legal standard
The court stated that due process requires notice of a lawsuit and an opportunity to be heard. The chosen method of service must be reasonably calculated to provide actual notice. Service by publication is disfavored and rarely used, but it is permitted under Federal Rule of Civil Procedure 4(e)(1) and California Code of Civil Procedure section 415.50.
Under California law, a court may authorize service by publication if the defendant cannot, with reasonable diligence, be served by another permitted method. The applicant must also show that a cause of action exists against the defendant or that the defendant is a necessary or proper party. The court explained that this showing requires independent evidentiary support in a sworn statement of facts.
If publication is authorized, the court must identify the newspaper most likely to provide actual notice to the defendant. The court may also require publication outside California if the defendant resides or is located elsewhere.
Court’s analysis
Akzo Nobel submitted its counsel’s declaration explaining why it believed publication was warranted. The court found that Akzo Nobel did not provide evidentiary support for the existence of a cause of action in the form of an affidavit of facts. The court also found that Akzo Nobel did not show that the proposed newspaper, Pacific Sun, was most likely to give GMP Cars actual notice.
Disposition
Judge Yvonne Gonzalez Rogers denied Akzo Nobel’s application without prejudice. The order terminated Docket No. 12. The opinion did not decide the merits of Akzo Nobel’s claims against the defendants.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.